Criminal Defense of Immigrants

(B)  Presentence confinement.  Presentence confinement counts toward actual time served in custody as a result of a conviction if the court, at sentence, orders a sentence to imprisonment and then gives the person credit against the sentence imposed for the presentence time served.[305]  Presentence confinement, in a criminal case, occurs when a defendant is kept in custody pending trial because s/he cannot make bail.  When the time of sentence arrives, the sentencing judge is required to give the defendant credit against a custody sentence then ordered, for the presentence confinement the defendant has already served.  For example, if the defendant has served six months in jail awaiting trial, and then pleads guilty and receives a sentence of nine months in jail, the sentencing court must deduct the six months custody time already served from the total nine-month sentence, leaving only three more months to go.  Under these circumstances, the full nine-month sentence ordered by the court would be considered a sentence imposed for immigration purposes.  Counsel could offer to waive the presentence credits, and ask the court, in return, to deduct that time from the sentence imposed, so a sentence of only three months would be ordered.  This would result in a sentence imposed of only three months for immigration purposes. 

                In the context of considering how much actual custody time was served for a given conviction, the courts have held that presentence custody counts as part of the sentence actually served for this purpose when the sentencing court has credited the presentence time against the full sentence required to be served.[306]

[1] Matter of Valdovinos, 18 I. & N. Dec. 343 (BIA 1982) (discussing California Penal Code § 2900.5).

[305] Matter of Valdovinos, 18 I. & N. Dec. 343, 344-45 (BIA 1982)(in computing the period of time for purposes of the 180-day actual time served statutory bar to showing Good Moral Character, under INA § 101(f)(7), 8 U.S.C. § 1101(f)(7), presentence confinement for which the defendant received credit for time served against the actual sentence is included); cf. Moreno-Cebrero v. Gonzales, 485 F.3d 395 (7th Cir. May 10, 2007) (presentence criminal detention, for which the defendant at sentence received a credit-for-time-served reduction in the actual sentence to be served, is counted as part of a term of imprisonment in determining whether the noncitizen has actually served five years in custody for purposes of eligibility for relief under former INA § 212(c)); see Edwards v. INS, 393 F.3d 299, 303 (2d Cir. 2004) (“It remains an open question in this circuit whether time accrued in pretrial detention should be counted in calculating whether the five year bar applies.”).